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Kaminskas v. State

Supreme Court of New Jersey

January 17, 2019

Lieutenant John Kaminskas and Chief Daniel Vaniska of the Union County Police Department, Plaintiffs-Appellants,
v.
State of New Jersey, Department of Law and Public Safety, Office of the Attorney General, Defendant-Respondent.

          Argued September 26, 2018

          On certification to the Superior Court, Appellate Division.

          Steven H. Merman, Assistant County Counsel, argued the cause for appellants (Robert E. Barry, Union County Counsel, attorney; Steven H. Merman, on the brief).

          Daniel M. Vannella, Deputy Attorney General, argued the cause for respondent (Gurbir S. Grewal, Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Daniel M. Vannella and Benjamin H. Zieman, Deputy Attorneys General, on the brief).

          Victoria A. Flynn submitted a brief on behalf of amicus curiae Monmouth County Prosecutor's Office (GluckWalrath, attorneys; Michael D. Fitzgerald, Monmouth County Counsel, and Andrew Bayer, of counsel and on the brief; and Victoria A. Flynn, on the brief).

          Cindy Nan Vogelman submitted a brief on behalf of amici curiae County of Hudson and the New Jersey Association of Counties (Chasan Lamparello Mallon & Cappuzzo, attorneys; Cindy Nan Vogelman, of counsel and on the brief; and Kirstin Bohn, on the brief).

         Lieutenant John Kaminskas and Chief Daniel Vaniska, who were both members of the Union County Police Department, requested defense and indemnification by the Office of the Attorney General (Attorney General) in a civil action brought against them for alleged investigatory and prosecutorial misconduct. The Attorney General denied their request on the basis that it is a county's duty, under N.J.S.A. 40A:14-117, to defend and indemnify its police officers in such matters. The Appellate Division affirmed that decision, and the Court now considers whether defense and indemnification were properly denied.

         This civil action arises out of a criminal matter. In 2006, Emmanuel Mervilus was arrested and charged with robbery, aggravated assault, and a weapons offense. Mervilus, who maintained his innocence, agreed to take a polygraph examination and stipulated to its admissibility at trial. Lieutenant Kaminskas administered Mervilus's polygraph examination. At trial, Lieutenant Kaminskas testified that he frequently administered polygraph examinations on behalf of the Union County Prosecutor's Office (UCPO) because it did not employ a polygraphist. At the time Lieutenant Kaminskas administered Mervilus's polygraph examination, Daniel Vaniska was Chief of the Union County Police Department.

         Lieutenant Kaminskas testified at Mervilus's trial as the State's polygraph expert. He testified that polygraph tests differentiate reactions of persons who are "telling the truth" and those who are "lying" and thus innocent or guilty. He testified that polygraph examinations are "not just a lie detector [but] also a truth indicator." He further testified that in his opinion Mervilus "wasn't telling the truth." A jury convicted Mervilus of first-degree robbery and aggravated assault.

         The Appellate Division reversed his convictions and remanded the matter for a new trial. State v. Mervilus, 418 N.J.Super. 138, 148 (App. Div. 2011). The Appellate Division found that Lieutenant Kaminskas's testimony was improper because it may have led the jury to "perceive polygraph evidence as infallible" and to "give it disproportionate weight in deciding to convict or acquit." Id. at 147. On remand, Mervilus was retried and acquitted of all charges. Mervilus filed a complaint against Lieutenant Kaminskas, Chief Vaniska, and two Union County prosecutors, among others, asserting claims for wrongful prosecution and conviction. The complaint alleged that the polygraph examination and Lieutenant Kaminskas's testimony were contributing causes to his wrongful conviction and prosecution.

         Lieutenant Kaminskas, Chief Vaniska, and the Union County prosecutors requested that the Attorney General defend and indemnify them pursuant to Wright v. State, 169 N.J. 422 (2001). The Attorney General agreed to defend and indemnify the county prosecutors but not Lieutenant Kaminskas or Chief Vaniska. The Attorney General noted that Wright requires it to defend and indemnify county prosecutors in appropriate circumstances but does not extend to county police officers. In addition, the Attorney General asserted that N.J.S.A. 40A:14-117 requires each county to defend its police officers.

         Lieutenant Kaminskas and Chief Vaniska appealed the Attorney General's decision. The Appellate Division agreed with the Attorney General's reasoning and affirmed. The Court granted the officers' petition for certification. 231 N.J. 557 (2017).

         HELD: Under N.J.S.A. 40A:14-117 and N.J.S.A. 59:10-4, the Legislature has provided that each county -- not the Attorney General -- is responsible for defending and potentially indemnifying its police officers.

         1. As part of the Tort Claims Act, the Legislature has set forth a detailed statutory scheme to govern the defense and indemnification of government employees sued for actions taken in the course of their employment. Pursuant to N.J.S.A. 59:10A-1, "the Attorney General shall, upon a request of an employee or former employee of the State, provide for the defense of any action brought against such State employee or former State employee on account of an act or omission in the scope of his employment." When the Attorney General is required to defend a State employee under that statute, then "the State shall provide indemnification for the State employee." N.J.S.A. 59:10-1. In addition to those provisions pertinent to State employees, the Tort Claims Act addresses the indemnification of other public servants. Although the Act uses permissive language as to the indemnification of employees of local public entities in N.J.S.A. 59:10-4, it elsewhere creates an affirmative duty to defend county police officers under certain circumstances. As relevant here, N.J.S.A. 40A:14-117 provides that "[w]henever a member or officer of a county police . . . department or force is a defendant in any action or legal proceeding arising out of or incidental to the performance of his duties, the governing body of the county . . . shall provide said member or officer with necessary means for the defense of such action or proceeding." (pp. 10-12)

         2. Wright came before this Court as an interlocutory appeal filed during a civil suit brought "against several defendants including thirteen employees of the SCPO," in which the plaintiff stated claims for false arrest and invasion of privacy based on withheld evidence. 169 N.J. at 429, 430-31. Somerset County requested representation and indemnification on behalf of the SCPO's employees and, when the Attorney General denied the request, filed cross-claims against the State. Ibid. The Court first noted that N.J.S.A. 2A:158-7, which provides for the payment by the county treasurer, subject to certain limitations, of "[a]ll necessary expenses incurred by the prosecutor for each county in the detection, arrest, indictment and conviction of offenders against the laws," did not resolve the issue of defense and indemnification. Id. at 443-44. Then, the Wright Court noted the "dual or hybrid status" of county prosecutors, id. at 454, and determined "that when county prosecutors and their subordinates are involved in the investigation and enforcement of the State's criminal laws, they perform a function that has traditionally been the responsibility of the State and for which the Attorney General is ultimately answerable," id. at 455. Because county prosecutors and their subordinates essentially function as State employees under those circumstances, the Court concluded that "the State should be obligated to pay the county prosecutors and their subordinates' defense costs and to indemnify them if their alleged misconduct involved the State function of investigation and enforcement of the criminal laws." Ibid. Significantly, the Court underscored "that the Legislature intended a sharp distinction between State employees and employees of other public entities that may be indemnified by such entities" but determined that "that distinction did not contemplate public employees, such as county prosecutors, who have a hybrid status." Id. at 455. (pp. 12-16)

         3. N.J.S.A. 40A:14-117's language is clear and unambiguous -- and it applies here: Lieutenant Kaminskas and Chief Vaniska are "defendant[s]" in the underlying civil action, and that action "aris[es] out of . . . the performance of [their] duties." Accordingly, N.J.S.A. 40A:14-117 mandates that the "governing body of" Union County defend Lieutenant Kaminskas and Chief Vaniska in the underlying civil action, and Union County is therefore responsible for indemnifying them pursuant to N.J.S.A. 59:10-4. In Wright, the Court considered the "unique role" of county prosecutors in the face of uncertainty in the relationship between the statute governing county reimbursement of expenses of the county prosecutor, N.J.S.A. 2A:158-7, and the TCA's clear grant of indemnification and defense costs for state employees. Wright, 169 N.J. at 443-44. Here, however, faced with the clarity of N.J.S.A. 40A:14-117, which did not exist for N.J.S.A. 2A:158-7, there is no reason to look beyond the Legislature's clear mandate. To extend Wright's function-based analysis to the officers here would frustrate the detailed liability structure the Legislature has enacted. As the Appellate Division noted, interpreting N.J.S.A. 59:10A-1 to cover Lieutenant Kaminskas and Chief Vaniska would result in an unnecessary conflict between N.J.S.A. 59:10A-1 and N.J.S.A. 40A:14-117. The Court declines to extend Wright in a manner that would create such conflict. The Attorney General is not required to defend and indemnify Lieutenant Kaminskas or Chief Vaniska. (pp. 16-18)

         AFFIRMED.

          CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON, SOLOMON, and TIMPONE join in JUSTICE FERNANDEZ-VINA'S opinion.

          OPINION

          FERNANDEZ-VINA JUSTICE

         Lieutenant John Kaminskas and Chief Daniel Vaniska, who were both members of the Union County Police Department, requested defense and indemnification by the Office of the Attorney General (Attorney General) in a civil action brought against them for alleged investigatory and prosecutorial misconduct. The Attorney General denied their request on the basis that it is a county's duty, under N.J.S.A. ...


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